Okay, so you’re a married woman, or maybe you’re about to marry, and you’ve accepted Islam or would like to, but you just heard from other Muslims that your marriage would be null and void unless your husband follows you by accepting Islam. But you love him, you may already have kids together, and even if you took that pronouncement at face value, where would you go? What about the marriage you’ve invested so much of your life into? Does Islam really ask you to turn your back on what you’ve built for yourself?
It’s quite a tough pill to swallow. And as a new Muslim myself, understanding how great and important marriage is along with how extraordinarily challenging it can be to accept Islam and mature as a Muslim, I wanted to know is this the only option our new Muslim sisters have? It became a topic I wanted to research in depth but mentally dormant until my Family Law professor at IIUM distributed topics to us at random, and guess what fell in my lap… “assessing the contradictory contemporary fatāwā regarding the marriage of a new Muslim woman whose husband remains a non-Muslim.”
So what follows is a summary, albeit lengthy, of the research I turned in. Since it is a research, I’ve preserved a lot of technical aspects that might be beyond most, although students of knowledge recognize that those subtle aspects can make a huge difference in explaining why scholars differed. Hence, this is really addressed to students of knowledge and masjid imams, activists and convert mentors in the West. However, since its results are particularly relevant to new Muslims, who generally have no Islamic studies background, I’ve decided to take them all on a tour of Islamic research methodology, to better appreciate our faith. If you’re not familiar already, I recommend reading my brief introduction to Islamic fiqh history.1)And unless otherwise stated, in-book references are based upon the Maktabah Shamela when I don’t provide direct link.
Since my designated study topic was “the fatāwā”, I decided to take a creative approach to ordering my research. Contents will be as follows:
- Contemporary fatāwā (this page)
- How the issue was legislated for during the Prophet’s time (pg. 2)
- Opinions of the first two generations, and reports of consensus (pg. 3)
- Factors to consider before giving fatwa or customized ruling (pg. 4) with conclusion
Without further ado…
What are the contemporary fatāwā regarding married women who accept Islam to the exception of the husbands?
Readers should know that the Salaf had numerous opinions regarding this issue, and some scholars even count nine separate opinions held by jurists of the first generations, including companions of the Prophet ﷺ. However, in the medieval era, differences between scholars almost vanished entirely, nearly becoming semantic. But in the 21st century, a couple of opinions that had laid dormant, not taken by any of the four imams, were given an audience and support once again, for pressing circumstances.2)If anyone has doubt about the mercy inherent in ikhtilaaf of the Ummah…
So what fatāwā will the lay Muslim likely encounter when searching for answers to this issue?
The Permanent Committee for Islamic Research and Fatwa (al-Lajnah al-Dā’imah), based in Saudi Arabia, had a large number of their fatāwā organized by Ahmad al-Duwaish and published in Riyadh, from when it was under the presidency of Shaykh Abdul-`Aziz bin Baz . More than one question addresses the concerning issue, in the 19th volume, pp. 16-20. One questioner, a caller to Allah from Europe mentioned that a wealthy woman from a well-known politically connected family had accepted Islam and was hiding her faith from her husband and children, but she intended to inform them very soon. The caller is afraid that telling her the ruling of staying with a disbelieving husband might turn her away from Islam. The question he posed was, is it allowed for him and her educators to delay informing her of this? In another question, an elderly woman accepted Islam and she lived with her husband but they did not have any intimate relations anymore. May they stay together when there is no intercourse between them? For both cases, the Committee decreed that separation was immediate and that the woman must begin her `iddah, and co-habitation was not an option. In the second case, they also said that the woman should return the dowry money to her husband.
One of the most popular Islamic question and answer websites is none other than Islam QA, which operates under the supervision of shaykh Muhammad Ṣāliḥ al-Munajjid. While this shaykh has traveled extensively, he is based in Saudi Arabia. There are many questions of our topic, as we would expect to find, and in all cases, the advisors make their pronouncement in alignment with the Permanent Committee mentioned above, and Shaykh ibn al-`Uthaymeen . In one example, the questioner’s husband is paralyzed and does not have the capacity to perform intercourse. The new Muslim wife’s role in his life is like a nurse and to converse, nothing more. After ruling their relationship invalid after her Islam, the Shaykh advised her to patience, steadfastness and trust in Allah. Likewise, a similar answer was given for an example where the husband made no attempt to stop his wife from practicing Islam or even raising the children Islamically.
As for the website Ask Imam, under the supervision of Shaykh Ibrahim Desai, there is a fatwa regarding a Swedish woman in divorce proceedings with her former husband who separated after she began practicing Islam two years ago. The husband wants to reconcile, agreeing to assist her in some aspects of Islam, and in return, she celebrates Christmas and Easter, and attends some celebrations where alcoholic drinks are typically present. A deputy mufti ruled that returning to her husband is not allowed until he accepts Islam. He then advised her to excellent manners while she invites her husband and daughters into Islam. And like the previous fatāwā, the advisor ruled her marriage to be invalid in Islam, regardless of when the divorce began or is finalized.
For added benefit, Twelver Shi`ah issue the same ruling, that the marriage is null and she must await her `iddah before remarrying, as can be seen in this fatwa regarding a Sabian women.
I contacted one of the most respected members of the Association of Muslim Jurists of America (AMJA) concerning the issue in general. He said to me, “What most imams in America, and myself included, prescribe in this situation, after a large number of jurists researched and discussed the issue over many years, is according to document no. 186 stating that the marital contract is nullified if the woman accepted Islam and the husband refused until her waiting period ended. However, considering the situations of some new Muslim women, and lack of available accommodation for them after their Islam and end of their `iddah, we prescribed for her to have a private room if their house is large enough. She then interacts with her former husband as if he was a stranger, covering in front of him and avoiding being alone together until Allah makes her way easier and she can have her own separate residence.” I asked if they allow her to engage in a “traditional Islamic nikāḥ” if her waiting period has ended but legal proceedings have not. He responded, “That is allowed if she is not subject to any harm because of it by the law of the land.” This correspondence took place through Facebook messenger in Arabic.
The European Fatwa Council, presided over by Dr. Yusuf al-Qaraḍāwī, adopted the same position as all formerly mentioned fatwa bodies. In summary, when a woman accepts Islam without her husband, the marriage is no longer recognized Islamically, and she awaits her `iddah before remarrying. If her husband accepts Islam before the completion of her `iddah, he may rightfully have her back. Otherwise, she is free to marry Islamically after that. The committee also noted the necessity of taking legal procedures to align with the Islamic ruling so that there is no contradiction between her status before Allah and her status before the law of the land. However, the committee added that some of its members argued that if the woman hopes in the Islam of her husband or if her mentors fear she’ll abandon Islam, she may remain with her husband with all Islamic marital obligations and privileges.
Although the idea of a woman accepting Islam before her husband is not a new phenomena—it happened during the Prophet’s lifetime, and every generation of scholars has briefly discussed it—modern day circumstances drive us to reconsider how the issue’s parameters have changed, and if that affects the ruling or not.
In addition to the above-mentioned fatāwā, some writers have tackled the issue. Hadeeth scholar and member of the European Council, Abdullah ibn Yusuf al-Judai` wrote Islam Ahad al-Zawjain wa madā Ta’thīrihi `alā `Aqd al-Nikāḥ, in about 250 pages.3)I looked long and hard for this book online, even to purchase, and could not find it, although I vaguely recall seeing it in stores many years ago in Saudia. The author undoubtedly gave the issue more research than any other single scholar has ever done, not surprisingly. He critically evaluated the chain and text of every narration, Prophetic or otherwise, related to the subject. In stating his final opinion, he assessed possible counter-arguments, as well as claims of consensus regarding the issue. What made his book extremely controversial was that it championed an opinion that had not been supported in at least 1200 years.
In response to al-Judai’s book, at least two other researchers wrote refutations of his conclusions, attempting to solidify the opinions of the 4 Sunni schools as being obligatory to follow. Fahd ibn Salih al-`Ajlan of Saudi Arabia’s Malik Su`ood University wrote a brief 20-page response. In summary, he called upon al-Judai to respect reported claims of consensus regarding the issue, and made attempts to show that al-Judai’s conclusion made certain un-Islamic necessitations. Dr. Muhammad Abd al-Qadir Abu Fāris, of Jordan, wrote a 150-page booklet regarding the issue, Athar Islam Ahad al-Zawjain fī `Aqd al-Nikāḥ, purely refuting al-Judai. With a little effort, one can find the entire Arabic book in PDF form online.
In addition to al-Judai, from the members of the European council, Shaykh Faysal al-Mawlawi , former deputy to the president, published a brief paper regarding the issue. He held that the marriage in question becomes suspended or interrupted mawqūf indefinitely. Once her waiting period has finished, she may marry someone else, assuming she takes proper legal procedures for doing so. And here the Shaykh went in more depth regarding the importance of the legal procedures, and consequences of discarding them. He added that whenever the husband accepts Islam, they may easily reunite, if she hasn’t remarried, because their marriage was in limbo, and no divorce or annulment took place. However, a later statement of his detailed that it is permissible for the woman to stay with the husband, because the legal procedures could take months or even years, and Allah does not burden a soul beyond its capacity. In that case, she is consider mustaḍ`af, or weakened and victimized by circumstances, so if her legal husband has intercourse with her, it would not be considered zinā, but it would be a sin less than that, akin to intercourse during menstruation.
Finally, the Egyptian Fatwa Institute also stated that as soon as a woman accepts Islam, she is forbidden to her husband. And whenever the husband accepts Islam, she is rightfully his, as long as they did not divorce or a judge did not dissolve their marriage. Until then, the woman has no choice but to be patient.
We note from the previously mentioned fatāwā, their agreement that once the wife accepts Islam, she is sexually forbidden from her husband by doing so. Some even suggesting that the marriage is over that moment. This is exactly what famous Andalusian mujtahid and imam `Ali ibn Ḥazm (d. 450) said in al-Muḥallā:
وَأَيُّمَا امْرَأَةٍ أَسْلَمَتْ وَلَهَا زَوْجٌ كَافِرٌ ذِمِّيٌّ، أَوْ حَرْبِيٌّ فَحِينَ إسْلَامِهَا انْفَسَخَ نِكَاحُهَا مِنْهُ – سَوَاءٌ أَسْلَمَ بَعْدَهَا بِطَرْفَةِ عَيْنٍ، أَوْ أَكْثَرَ أَوْ لَمْ يُسْلِمْ، لَا سَبِيلَ لَهُ عَلَيْهَا
“And any woman that accepts Islam, and she has a disbelieving covenanted husband or non-covenanted, then the moment she accepts Islam, her marriage to him is null and void – even if he accepts Islam after her by the blinking of an eye, or more, or never accepts Islam. There is no recourse for him towards her.” (5/368)
Ibn Qudāmah (d. 620) said it was more appropriate to say that “accepting Islam together” meant in the same sitting or session, but not necessarily pronouncing the declaration of faith simultaneously, since that is difficult and nothing like it appears in the scriptures or Sharia (Al-Mughnī, 7/153).
Similarly, the fatwa bodies stated that the woman observes her formal `iddah, so if the husband accepts Islam before it ends, they remain together. If he accepts Islam after the waiting period finishes, then they must initiate a new marital contract if they want to be married. But until he accepts Islam, intercourse is forbidden between them forever. This is the opinion of the four imams in general, however, Ibn Ḥazm and the Hanafis did not mention waiting out the `iddah unless it happened in dar al-ḥarb, outside the Muslim world. According to Abu Hanifa, if she accepts Islam in Muslim lands, then Islam is offered to the husband, and if he rejects it, their separation is finalized (see al-Fatawa al-Hindiyah, 1/338). Ibn Ḥazm held full legal separation to happen instantaneously, as we saw before.
As for Shaykh Faisal al-Mawlawi, he chose the opinion of Ibn Taymiyyah (d. 728) and his student ibnul-Qayyim (d. 751) who disagreed with the four imams on the previous point. They stated that a woman may choose to live in the same residence as her husband, even for many years, while providing nafaqah provision for her would be obligatory upon him and intercourse forbidden, if she is awaiting his Islam. Their marriage would be in suspension. She could remarry after her `iddah terminates, but is not obliged to leave the company of her husband until then. Muhammad ibn Ismā’īl Al-San’ānī (d. 1182 / 1768, author of Subul al-Salam, the commentary of Bulugh al-Maram) and Muhammad ibn `Ali al-Shawkānī (d. 1255 / 1839), champions of ijtihad and critics of taqleed, also favored this opinion.
As for the claim that intercourse is allowed and the marriage not affected, then it is not known from any scholar of Islam since the fiqh schools spread, even though there exists an early precedent for the opinion which has recently been resurrected, as we will come to insha’Allah.
References [ + ]
|1.||↑||And unless otherwise stated, in-book references are based upon the Maktabah Shamela when I don’t provide direct link.|
|2.||↑||If anyone has doubt about the mercy inherent in ikhtilaaf of the Ummah…|
|3.||↑||I looked long and hard for this book online, even to purchase, and could not find it, although I vaguely recall seeing it in stores many years ago in Saudia.|